Ideas that Kindle Thought

Google Settlement Information, Documents, News &
Links

I'll will
post below documents, links, news and other information
associated with the Google settlement dispute. Because I
am writer, I will pay particular attention to issues
important to writers. And although I live in Seattle, I
will pay also pay particular attention to developments
overseas, especially in Europe.

The key fact to remember about this settlement is that,
unlike many other decisions in U.S. courts, its impact is
not limited to U.S. citizens or people living in the U.S.
The focus of the settlement is on the U.S. copyrights
held by anyone living in the U.S. or any of the some 160
countries having copyright treaties with the U.S.
Wherever you live, if you have ever authored a book, even
one that has not yet been published, or if you plan
someday to write a book, the settlement will impact your
rights under copyright. Also keep in mind that, because
of its large immigrant population and large size, the
United States is one of the largest markets in the world
for books written in languages other than English.

Because of this broad reach, drastically reducing the
copyright protection accorded virtually every writer in
the world, the response from overseas may well determine
whether a federal district court judge in New York City
approves this settlement or rejects it as overly broad
and a violation of the international copyright treaty
obligations the U.S. has made with almost every other
country in the world.

If those are your interests, you might want to bookmark
this page. In general, I'll post the newest links at the
top, while downloadable documents related to the dispute
will be in oldest-to-newest chronological order at the
bottom of this webpage.

The Google Settlement & Writers Outside the
U.S.

Those who live outside the United States should
not think that the pending Google settlement does not
apply to them. In almost all cases it does. If
you have a copyright in a country that has a Berne
Convention agreement with the U.S. (and almost all
countries do), then you have what the settlement calls a
“U.S. copyright interest,” meaning you automatically own
a U.S. copyright thanks to those treaties.

Normally, that’s a good thing. In this case it is not. If
a district court in New York City approves this
settlement, and you do not take formal, legal steps to
opt-out of the settlement by a court-established date,
then you will be included in the settlement and will lose
most of your rights to sue Google for copyright
infringement in a U.S. court. That is very serious.

You will find much of that explained in a FAQ that Google
has posted, although the implications are often obscured
by the complexity of the agreement and the use of
technical terms such as “U.S. copyright interest.” Here’s
one of the relevant passages, question and answer #9 in
that FAQ. Notice that the three bullet clauses are
connected by an implied “or.” If you meet one of the
conditions in bullets you are included in the settlement
and will be automatically subject to this agreement.
Here’s what Google says:

*****
9. I am not a United States citizen, or I live outside of
the United States. Am I included in this Settlement?

Yes, most likely you are. If you are a citizen of another
country or live in another country, you are likely to own
a U.S. copyright interest if:

• Your Book was published in the United States;
• Your Book was not published in the United States, but
your country has copyright relations with the United
States because it is a member of the Berne Convention; or
• Your country had copyright relations with the United
States at the time of the Book’s publication.

You should assume that you own a U.S. copyright interest
in your Book, unless you are certain that your Book was
published in, and that you reside and are located in, one
of the few countries that have not had or do not now have
copyright relations with the United States. The Copyright
Office has published a list of countries with which the
United States has copyright relations, available at
www.copyright.gov/circs/circ38a.pdf.
If you have further questions about whether you own
a U.S. copyright interest in your Book or Insert,
you can contact Class Counsel, who are the attorneys
representing the Settlement Class. Their names and
contact information are on the Notice. You may also
seek advice from an attorney or a rights
organization in your country.

Needless to say, all authors or copyright holders
who are U.S. citizens will be bound even more tightly by
that settlement. They must formally opt-out by Friday,
September 4, 2009, or they will be automatically be opted
in. This is not something you can safely ignore.

Settlement Links and Documents

LINK: The Financial Times (UK) has an August 12, 2009
article on "European Publishers target Google," which
describes the growing opposition to the Google
settlement in Europe. Follow the "Analysis: A plan to
scan" link at the end of the article for an overview of
the settlement dispute including statistics about the
number of books involved. (Free sign up is required to
view the articles.)

LINK: The July 24, 2009 issue of the Boston Globe has
an article on the concern many librarians and others
have that "Google will end up with the monopolistic
control of access to millions of scanned digital
books."

LINK: (In English) The Japan Times has an excellent
July 22, 2009 article on "Google Books Leaves Japan in
Legal Limbo" by Tomoko Otake. It notes that Japan's
publishers were long "in the dark" about Google's plans
and that now that they know, they feel frustrated
because they feel that have little chance of winning if
they contest the settlement: "Raising an objection
means that you will have to file a suit in the U.S.,"
the editor said. "That means hiring a lawyer that would
cost up to ¥500,000 a day. That cost alone is making
(most publishers) wary of opting out." They could use
some legal advice, however. It costs nothing to opt out
other than the labor costs of entering the data. For a
large publisher with many books, however, the data
entry may be considerable and publishers can
legitimately question why they have to spend money to
keep Google from doing what it has no legal right to do
under the Berne Convention.

LINK: (In German) Welt Online interviews German
Minister of Justice Brigitte Zypries on various
Internet issues, including the Google settlement, which
she notes is "not compatible" with German law.
Copyright law varies from country to country, so the
real issue is whether the settlement is compatible with
treaties the U.S. has signed with other countries,
since those treaties are binding on a U.S. court.

LINK: (In English) This links to a computerized
translation of the Welt Online interview with German
Minister of Justice Brigitte Zypries. A German source
has told me the ministry has hired a NY law firm to
help them oppose the settlement.

LINK: (In Japanese) The Japan Visual Copyright
Association is wrestling with developing an Asian
response to the Google settlement, placing them roughly
where Europe was two months ago. You can find links to
stories at this website.

VIDEO: (In English) In late February, Georgetown
University held a excellent Scholarly Communication
Symposium on "Google and the Future of Higher
Education" with back-to-back speeches by Siva
Vaidhyanathan and James Grimmelman. Both were initially
excited about Google's plans, but have become more
skeptical and critical. Just keep in mind that their
focus was on the academic and legal issues, so they say
little about the implications for authors or the
international copyright treaty ramifications. At the
linked page, either click on the picture to stream the
video to your browser or use the "Download from iTunes
U" link to get a MP4 file.

LINK: (In English) The Ottawa Citizen has an excellent
article on the Google dispute, describing the fear and
confusion that Canadian writers feel about it. Having
had five books in Google's earlier (and legitimate)
book search program almost from the beginning, I'm more
skeptical than they are about the advantages of being
in any Google book search program, least of all one as
bloated with millions of quickly scanned books as
Google's latest scheme.

LINK: (In English) Euobserver.com reports that the EU
competitiveness ministers are about to ask for an
investigation of Google's digitization plans and the
Google settlement. A few weeks ago I noted that only
the German government seemed aware of what was
happening. Now France, Austria and the Netherlands are
"also said to be keen to have the issue put on the
table." For European politicians, I suspect this is an
issue they can't lose on. I just hope they don't get so
focused on competitiveness, that they neglect the more
critical copyright issues.

LINK: (In English) On May 12, 2009, German minister
Bernd Neuman spoke to other EU officials in Brussels
about a "worrying development" as Google's behavior
clashes with, "our understanding of European copyright
law, which for good reasons, the consent of the author
before using a digital presupposes." This link is to an
English translation (by Google Translate) of a press
release about that meeting.

LINK: (In English) In the interest of balance, here's a
link to a revealing statement about the settlement on
the Google Public Policy Blog. Notice that only Google
Book Search users in the U.S. will be able to display
books covered by this settlement. Those outside the
U.S. will find that what Google calls their
"experience" of Book Search won't change. That's
Google's rather slippery way of saying that you won't
be able to view the books in this settlement online if
you aren't in the U.S. That's why it is undeniable that
all the other countries in the world will lose if this
settlement is approved by a U.S. court. Major portions
of books by their writers will be available online for
free in the U.S., but books by U.S. writers won't be
available for display in their country. That's because
this settlement only applies to U.S. copyrights, those
either formally granted in this country or
automatically granted by treaty agreements with other
countries. The most bizarre aspect of this settlement
is that by simply applying for a copyright in their
home country, a writer will automatically lose much of
their copyright protection in the U.S.

LINK: (In English) Mary Minow of LibraryLaw Blog
comments on what the settlement means for foreign
authors. She notes that, "The largest group of
non-active rights holders are likely to be foreign
authors."

LINK: (In German) This is a May 5, 2009 article that I
wrote for the Frankfurter Allegeime, one of the most
respected newspapers in Germany. In it I explain the
settlement's controversial use of American class action
law to a European audience. The German title is "Google
und das Urheberrecht Alles hängt jetzt von Europa ab."
There is an English-language version for which I am
looking for a publisher, particularly in the UK. I'll
let you know when it appears in print.

VIDEO: (In English) An almost thirty-minute interview
with Brewster Kahle of the Internet Archive on the
Google Settlement, particularly its anti-trust
implications. If your time is short, there is a
transcript beneath the video. It summarizes the
long-term implications of the settlement so well, that
those who want to help people in their own country
understand the settlement might get permission and
subtitle it in their own language. Highly recommended.

LINK: (In English) Here's an article I did for
Teleread. Judging by a Google search I did the day it
appeared, it was the first to break the story about a
letter I and six other writers (or their
representatives) sent to the court managing the lawsuit
against Google and requesting a four-month delay in the
settlement schedule. You can find our letter below
along with the judge's order agreeing to our request
below. And yes, it is easy to be one of the first to
break a story when you are one of those creating that
story.

LINK: (In English) "German Authors Outraged at Google
Book Search," an article in Spiegel on April 27, 2009.
At present, over 1600 German writers have signed the
Heidelberg Appeal, asking for the German government to
oppose the Google Settlement.

LINK: (In English) An article published by the American
History Association on "Google Books: Is It Good for
History?" by Robert B. Townsend. It criticizes the
accuracy and hence usefulness of Google's mass
scanning.

PDF: Here's the September 2, 2009 letter I've sent to
the judge in the Google settlement dispute. In it I pay
special attention to the harmful impact the settlement
will have on the average author. Feel free to post or
pass this letter on.

PDF: (In English) Here's a copy of the information note
that Germany provided the European Competitiveness
Council for meetings on May 28-29, 2009. Hopefully, the
council will clarify its thinking before acting. The
settlement concerns U.S copyright, and thus what Google
can display to Internet users in the U.S., where Google
plans to make available major portions of orphan texts
without the consent of the copyright holder.
German/European copyright law only applies to what
Google displays to users in Germany/Europe, which is
short 'snippets.' So, it's not European copyright law
that's the central issue. It's the copyright law
embedded in international treaties that the U.S. has
signed. This settlement must conform to those treaty
obligations and it cannot do so without being radically
altered, ending the forced opt-in provisions of the
so-called class action.

PDF: This is the court's "Preliminary Settlement
Approval" signed by Judge John E. Sprizzo and filed on
November 17, 2008. Note especially item 23. It states
that "any Settlement Class member" who does not
formally and through their lawyer object to the
settlement by the May 5, 2009 deadline will find "any
objection" that they might make thereafter "deemed
waived and forever barred." That "forever barred" date
has been delayed to September 4, 2009, but it still
remains in force.

PDF: The letter that DeVore & DeMarco filed with
the court on April 24, 2009 asking for a four-month
extension in the May 5 automatic opt-in date for the
Google settlement. Most of the seven authors or their
representatives are writers of fiction.

PDF: The letter that Pamela Samuelson of UC-Berkeley
School of Law filed with the court on April 27, 2009,
asking for a six-month extension in the May 5 automatic
op-in date for the Google settlement. It describes the
objections that 16 prominent academic authors have to
the settlement. Their request for a six-month extension
may have made it easier for the judge to approve a four
month extension.